What is Civil Forfeiture?
Civil Forfeiture is a broad term but is often used to describe the legal process of when an officer takes a person’s personal property. Although civil forfeiture is nothing new to judicial systems across the country, it has been called into controversy in Oklahoma recently because of a seizure of money by a sheriff’s department that was intended, in part, to go to an orphanage; and because the Oklahoma Highway Patrol has a new device called ‘ERAD’ to seize prepaid cards and quickly identify potential identity theft criminals.
When can assets be seized?
Officers are allowed to seize property under statutes. The lion’s share of property seized in Oklahoma is under 63 O.S. § 2-504. This gives officers the authority to seize property under four different circumstances. An officer may seize property if:
1) a person is arrested or a search warrant is issued for the property;
2) the state has received a judgment against the property in Court;
3) the property is ‘dangerous to health or safety’; or
4) the officer believes ‘the property has been used, or will be used’ in connection to criminal activity.
The fourth reason causes the most tension between balancing the right to due process and the ability of officers to police criminal activity. This places a seizure into an officer’s sole discretion without any immediate oversight or due process. It also allows an officer to seize a person’s property without the person ever being charged with a crime based on the legal fiction that the object itself is guilty of a crime. Austin v. U.S, 509 U.S. 602.
This leaves most wondering what assets an officer is allowed to seize and what a person can do if they believe their assets have been seized incorrectly. Property that is subject to forfeiture is listed in Oklahoma statutes. This list is extensive and encompasses most types of assets including but not limited to cash, vehicles, weapons and homes.
Are there limitations?
Although this list is long and exhaustive, there are limits on what may be seized by an officer. A seizure may not violate the Eight Amendment of the U.S. Constitution which prohibits excess fines and cruel or unusual punishments. In determining if a seizure is an Eighth Amendment violation, the Court will determine if the seizure is a punishment or if the seizure is directly related to the offense. Id. If the seizure is a punishment or punitive in nature, the seizure is unlawful and the property should be returned. U.S. v. Bajakajian, 524 U.S. 321. If the property seized was remedial or related to the offense, the seizure is proper. United States v. Ursery, 518 U.S. 267. In summary, a seized asset must be an instrumentality making seizures typically limited to property actually used to commit an offense and no more. State ex rel. Campbell v. Eighteen Thousand Two Hundred Thirty-Five Dollars, 2008 OK 32.
Examples from the cases above are:
- Forfeiture of a body shop and mobile home were held not to be directly related to the crime of possession with intent to distribute cocaine even though the defendant stored the drugs in the locations. Austin.
- Failing to report to custom officials that a defendant was crossing borders with over $10,000.00 did not directly relate to the seizure of the defendants full $350,144.00 when no other crime had been committed. Bajakajian.
- Seizure of cash from defendants convicted of conspiracy to aid and abet the manufacture of meth and money laundering was directly related to the crime thus was proper. Ursery.
- Seizure of cash found next to marijuana was directly related to the crime of selling marijuana therefore proper. State ex rel. Campbell.
Can you get property back?
If a person believes their property was improperly seized, they have to wait until they receive a notice of forfeiture telling them that the government agency wants to keep the property. There is not a set amount of time for the notice to be sent other than it must be in a reasonable amount of time. If a notice is not received in a reasonable amount of time, the person may try to speed up the process by requesting the Court to order the property returned. Once the notice is received, the person then may proceed to show a defense as to why the property should not be forfeited. Several common defenses are: Innocent Owner, Illegal Search and Seizure and Disproportionality of the seizure compared to the crime as discussed above. The Court will then determine at a hearing if the property should be forfeited based on the facts and the circumstances in which the property was seized.